Do we trust the public to make the right call?

Has the time come for a referendum on the future of referendums in our democratic process, asks Liam Weeks

APPARENTLY there’s a referendum this Friday. Not that you’d know from the shameful level of attention afforded it by our political elites.

Perhaps a small minority of politicos are aware that the referendum concerns removing the prohibition on blasphemy as outlined in article 40.6.1.i of the Constitution.

However, unless you’re one of the few to have read the rather sparse leaflet in the post from the Referendum Commission, you may not know that there is more to that constitutional article than just blasphemy.

It states that ‘organs of public opinion... shall not be used to undermine public order or morality or the authority of the State. The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law’.

The referendum proposes removing just one word from this article: blasphemous. If passed, the rest of the text remains in place. So, publishing seditious or indecent material will remain constitutionally prohibited.

But, what is indecent material? Bad grammar? Textspeak? While we’re at it, how about postmodern art? More seriously, should Conor Casby, the artist of the infamous nude portraits of Brian Cowen in 2009, have been prosecuted on the grounds that his paintings were both indecent and undermined public order and morality?

We could reasonably argue that it is fair enough to have some limit on attempts to undermine State authority, but morality? Whose morality? That of the majority, minorities, the church, the government’s morality?

Many of you will recall the outcry over the murderous attack on the offices of the French satirical magazine Charlie Hebdo in 2015 following its publication of a cartoon deemed offensive to Islam. ‘Je suis Charlie’ was a popular declaration of empathy in its immediate aftermath, a protest in defence of free speech and against those offended by what they considered indecent material.

However, in contrast to France, where it was religious extremists who took it upon themselves to police decency, in the Irish case the responsibility could fall on State authorities.

Had an Irish newspaper sought to publish something offensive, no ‘Je suis Charlie’-type reaction may have been possible, because the State could have been constitutionally obliged, on the grounds of morality and decency, to stop the publication of the material in the first place.

While many in favour of the removal of the ban on blasphemy might baulk at such a possibility, and prefer deleting article 40.6.1.i in its entirety, this is not possible next Friday.

You can only vote on the question put to you by the Government. This is one of the rather paradoxical elements concerning the direct democratic nature of our referendum process.

Though the sovereignty of the Irish people is enshrined in that only they have the power to change the Constitution, the people have no power of initiative. It is the sole and exclusive power of the Oireachtas to both call and decide on the wording of a referendum.

This is in contrast to the situation that prevails in Switzerland, where a petition of 100,000 signatures can trigger a referendum, and under our own Free State Constitution, when 75,000 signatures was sufficient (albeit no such initiative ever took place).

The referendum process is often lauded in this country as an example of democracy in action, with the recent votes on abortion and marriage equality two evident examples. But is it really more mob rule than people power?

If referendums are so commendable, why do most democracies rarely use them? Since 1945, there has not been one such national vote in Germany, India, Israel, Japan or the US. In the same period, there have been only 11 national referendums across Belgium, Canada, the Czech Republic, Finland, Luxembourg, Norway, the Netherlands and the UK.

Rather than being a tool of democracy, Margaret Thatcher described the referendum as ‘a device of dictators and demagogues’.

Adolf Hitler used referendums to ratify his invasions of Austria and Czechoslovakia, and in more recent decades, Saddam Hussein called referendums on his presidential rule in Iraq.

In the first plebiscite in 1995, 99.99pc of the electorate ratified Hussein’s rule. The 984 Iraqis who voted ‘no’ learnt the error of their ways — and in 2002 the referendum passed with 100pc support on a turnout of 100pc.

The inherent danger with referendums is that they reinforce the idea that might is right. Central to the process is the notion that we should be governed by the wishes of the majority, whatever they might be.

There are a number of other problems with referendums, which explain their limited use in parliamentary democracies.

They are conservative devices, as people are more inclined to vote No because of the risk of change, regardless of the issue before them.

It is unlikely, for example, that women would have got the vote had it been put to referendum.

This is why the onus is very much on political parties to participate in referendum campaigns to make voters aware of the issues to hand. When the parties took a back seat, as in the 2001 referendum on the Nice Treaty, the 2013 vote on retention of the Seanad and the 2015 referendum on lowering the age restriction on presidential candidates, the referendums were all defeated.

Indeed, the most recent of these examples indicates the unreliable nature of referendums, with people voting against one form of equality (age discrimination) while concurrently voting for another form (marriage equality).

Many political issues can be highly complex matters that require policies to be developed over time, and for which there is often no simple black and white solution.

Abortion is one such issue, but the danger in attempting to make policy by referendum is that it turns the issue into a simple binary one, when we know abortion is not a yes/no matter.

In this way, referendums prevent policy innovation and discourage the search for consensus. It is really only through discussions in society and parliament that this can be achieved.

That is why the Government was correct not to reverse the Eighth Amendment completely by proposing a constitutional article that would legalise abortion.

Instead, it removed the issue entirely from the Constitution and gave parliament the responsibility to deal with the matter.

An early scholar of modern democracy, and one-time Chief Secretary of Ireland, Lord Bryce, claimed that parliamentarians ‘may be ignorant, but not so ignorant as the masses’.

This is perhaps the biggest criticism of referendums, that they can give the ‘wrong’ result, namely one that is not in the people’s best interests. Dare I mention Brexit?

This can happen not just because of a lack of competence on the part of voters, but also because we have no means to ensure that they vote on the issue to hand (although Saddam Hussein didn’t seem to have this problem).

Some may use their vote to protest against the government, some may be inclined to vote No regardless of the issue, while others may not like the personalities associated with one side.

Arguably, Brexit may have attracted even greater support had someone less disagreeable than Nigel Farage been leading the Leave campaign.

For now, Ireland must remain one of the leading exponents of referendums, because Article 46 of the Constitution stipulates that this is the sole means by which constitutional change can occur.

Given the unpredictable and populist nature of referendums, and their proving an obstacle to reform, perhaps this article should be revisited.

Is it time for a referendum on referendums?

‘The inherent danger is that they reinforce the idea that might is right’